Blog

Officer wants your cell phone, resisting arrest

Date: 03-20-2014

The other day I was interviewed by Rene Stutzman, staff writer for the Orlando Sentinel. Ms. Stutzman wrote a piece, Police Seizing Cell Phones; A Civil Rights Issue, (the full article is below), in a lawsuit where the arrestee is suing the police because an officer made him stop recording the officer, and when the person refused to stop he was arrested for Resisting an Officer Without Violence, otherwise known as resisting arrest under Florida Statute 843.02.

As I was quoted by Ms. Stutzman, this issue is coming up more and more. Technology moves fasters then the legislature can regulate our advanced society. As a result of the request for the interview I've been giving this topic some thought, and below provide some suggestions to the government and the citizen.

Suggestions for the government:

Either the legislature could require the below policies and/or the police agencies themselves could invoke such a policy:

1. When an officer believes a person is video recording, and evidence is being captured, the officer has a right to collect said evidence.

2. The method of collection should be by the least intrusive means possible.

3. The least intrusive method most commonly available is to have the person recording the event, email the video to ________________________. Law enforcement could have a special email account just for the collection of evidence.

4. Further, the officer should have the person providing email fill out an affidavit with their name, address, phone number and email address. Said person shall also certify that the video has not been altered prior to emailing.

The reason for the above policy is to protect everyone. The innocent bystander should not fear that he will be punished for video recording public events. And the government should be able to secure evidence that may be fruitful in the investigation of a crime.

The Legislature could provide that an officer who complies with the above protocol is immune from prosecution or civil liability. Thus, by protecting the rights of the citizen so do we protect the rights of law enforcement.

The above policy allows the person to keep the recording for whatever purpose they desire, and their phone. Said person will not be in fear of being arrested. Also, said person should not be in fear that their privacy will be further invaded.

The Florida Supreme Court has recognized that law enforcement needs a warrant to search a cell phone. Smallwood v. State.

Police seizing cell phones: A civil-rights dispute

You're walking down the sidewalk and see police officers making an arrest. They're using force, and the man they're arresting is protesting. You pull out your cellphone and start recording.

An officer orders you to stop, says you're breaking the law. He demands that you hand over your phone.

What should you do? Are you breaking the law?

No, according to local lawyers, as long as you were in a public place and not interfering with the officer or his investigation.

"You have an absolute right to videotape an officer or anyone else on the street," said Howard Marks, an Orlando attorney who specializes in civil-rights cases. "Law-enforcement officers don't like being taped. That's tough luck."

The issue has become a growing civil-rights dispute, the result of smartphone proliferation.

It has transformed a dispute that used to involve a relatively small number of people — news photographers — into one that has the potential to put cops at odds with any bystander with a cellphone.

It has prompted arrests, disputes, and lawsuits across the country, including:

•Rochester, N.Y., where a woman was arrested after she began video-recording a traffic stop while standing in her yard.

•Baltimore, where officers seized a man's phone after he recorded video of his friend's arrest. When it was returned moments later, the video had been deleted.

•Newark, N.J., where a high-school girl was arrested after video-recording officers responding to an incident on a transit bus.

On Monday, a 25-year-old Orlando man, Alberto Troche, filed a federal civil-rights lawsuit against Orlando police Officer Peter Delio, accusing him of falsely arresting him and violating his constitutional rights Dec. 7 when the officer ordered him to stop video-recording another man's arrest in downtown Orlando.

The video shot by Troche shows several Orlando officers yelling at a crowd of bystanders, ordering them to stop video-recording the arrest and threatening them with arrest if they refuse.

It also appears to show Delio grabbing Troche's phone after telling him, "I'll be taking that."

Sgt. Jim Young, a spokesman for the Orlando Police Department, would not comment on the case, citing the pending litigation. City lawyers have not filed a response in federal court.

The state's largest police union, the Police Benevolent Association, did not return a call for comment. Neither did the Fraternal Order of Police, which represents Orlando police officers.

"We've seen over the past couple of years … a pattern of law enforcement officers ordering people to stop taking pictures or videos in public places as well as taking cameras and arresting people who fail to comply" said Baylor Johnson, the media-relations manager with theAmerican Civil Liberties Union of Florida. "That's something we find really troubling."

Matthews Bark, a former assistant state attorney now in private practice in Altamonte Springs, said, "It's coming up more and more. It's something we need to deal with as a society."

Troche was accused of resisting arrest without violence, a charge that prosecutors dropped. But not until he'd spent 15 hours in police custody and at the Orange County Jail.

Local lawyers were unequivocal this week that officers were in the wrong when they ordered Troche to stop recording the arrest.

"If you're in a public place, and you're not interfering with a lawful investigation, then you have an absolute right to videotape a police officer," said Adam Pollack, an Orlando criminal defense lawyer. "There's no expectation of privacy."

He pointed out that the intersection where Troche was arrested — Wall Street and Orange Avenue — is already under video surveillance by city-owned cameras.

The Orlando Police Department, Orange County Sheriff's Office and Florida Department of Law Enforcement all advise officers that, when they're in public, citizens have a right to video-record them.

But the lines get blurry about whether an officer has a right to seize the phone or camera of someone recording officers at work.

If the officer thinks it contains evidence of a crime and there's a danger that the evidence is about to be destroyed, he or she should seize and hold it, according to an OPD training bulletin from November.

In his arrest report, Delio wrote that's what he was trying to do when he took Troche's phone: preserve evidence of a crime.